Are exclusivity clauses allowed under competition law?

Often yes, especially under the vertical block exemption, but exclusivity that appreciably restricts competition can be void under Mw article 6 and TFEU article 101.

How does exclusivity differ from a non-compete?

Exclusivity channels dealings to one partner, while a non-compete bars competing activity altogether. The two are often combined.

Can a party terminate for breach if the other side deals outside the exclusivity?

Yes, if the exclusivity obligation is a material term and the breach is sufficiently serious. The contract typically also provides for an injunction and a damages claim. Establishing and quantifying the loss can be complex when the exclusive market is shared.

What performance obligations typically accompany an exclusivity clause?

Minimum purchase volumes, sales targets, active promotion obligations, or a best-efforts obligation to develop the market. These ensure the exclusive party delivers real commercial value in exchange for the restriction.

Can exclusivity be granted for an unlimited territory?

Broad territorial exclusivity (such as global or EU-wide) is permissible if it satisfies competition-law requirements, but attracts greater scrutiny. Very large territories combined with high market shares are unlikely to benefit from the block exemption and require individual justification.

Exclusivity clause

A provision committing a party to deal only with the other for defined goods, services or territory.

Definizione

An exclusivity clause obliges a party to source from, sell to, or deal exclusively with the other party for a defined product, service, customer group, or territory. It provides commercial certainty and protects investment, but because it restricts who the parties may trade with, it is scrutinised under competition law. The Dutch cartel prohibition and TFEU article 101 limit exclusivity that appreciably restricts competition, subject to block exemptions for vertical agreements.

Esempio

Under the exclusivity clause the distributor may sell the brand's products in the Benelux and source them from no other supplier.

Perché rappresenta un rischio aziendale

An exclusivity clause limits a party's ability to diversify: a customer locked into a single supplier is exposed if that supplier underdelivers, exits the market, or is acquired. A supplier granting broad exclusivity may forgo significant revenue from other customers. If an exclusivity clause is void under competition law, the party relying on it has no contractual recourse and may have structured its entire commercial model around an unenforceable restriction.

Come gestirlo

Define the scope of exclusivity precisely: product, territory, customer group, and duration.
Carry out a market-share analysis before agreeing: the vertical block exemption requires both parties below 30%.
Include performance obligations on the exclusive party (minimum purchase volumes, active selling obligations) so exclusivity is conditional on real commitment.
Set a review mechanism so exclusivity can be renegotiated if market conditions change materially.
Obtain legal advice on the competition-law position before agreeing to exclusivity in markets where either party has significant share.

Riferimenti normativi

Salvo diversa indicazione, i riferimenti riguardano il diritto olandese (Burgerlijk Wetboek, il Codice Civile olandese); gli strumenti UE come il GDPR si applicano in tutta l'UE. Si tratta di informazioni generali, non di consulenza legale. Altre giurisdizioni trattano questi concetti in modo diverso. Verifichi il testo vigente e la propria situazione con un avvocato qualificato.

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